This week at the Supreme Court: In Plain English

Posted Fri, April 23rd, 2010 6:19 am by Lisa McElroy

What a week it has been at the Supreme Court! There has been intense speculation over who will replace Justice Stevens, as well as the ninetieth birthday of this young-at-heart Justice. On the legal landscape, it's been a notable week for the First Amendment. We finally had a decision in what most consider to be the most important First Amendment case of the Term, and the Court heard oral argument in another.

Let's start with the oral argument in Christian Legal Society v. Martinez, a case that's supposed to be about whether a public university must recognize a student group that does not comply with anti-discrimination policies. At question in this case specifically was whether the University of California's Hastings College of Law could deny school funding and other benefits to a religious student organization because the group required its officers and voting members to agree with its core religious viewpoints.

Sounds like a fairly clear, if difficult question. But to Justice Kennedy and several of the other Justices, the case had become decidedly fuzzier over its lifetime, resulting in Kennedy's commenting that he didn't really know just what the case was about. Certainly, it's about the need for diversity and non-discrimination policies balanced against the sincerely held religious beliefs of some student groups. But the case is also about, more specifically, discrimination by a religious student group against people who have sex outside of marriage, and even more specifically, people who are homosexual. Does such a group have a right to do so? Why or why not? Does the First Amendment protect the group members' right of association to that extent?

How do these issues arise in this case? Well, because the Christian Legal Society at Hastings required voting members and officers to sign a pledge that they agreed with the society's core values, including the rejection of extramarital sex. Because gay people cannot legally marry in most states (including California), they were automatically excluded from full membership in the group, even if they were Christian. Because the exclusion policy "“ which stemmed from the CLS national organization "“ violated the law school's inclusion policy, the law school refused to recognize the group. CLS then sued, claiming religious discrimination.

And these two arguments are what make this case especially interesting and relevant, especially at this point in history. The Court will have to consider the legitimacy of both positions. As Hasting's dean, Leo Martinez (one of the defendants in this case), stated recently, "[T]here's a Spanish saying to the effect that "the thinnest of tortillas still has two sides.'"

As Lyle noted in his post here, the Court may ultimately decline to decide the case, in part because of the lack of clarity in the record (the information about what happened in the legal proceedings in the trial and appeals courts). If the Court does not dismiss the case, however, we'll all be waiting with bated breath to hear not only how the case comes out, but exactly which issues in the case the Court chose to decide, especially because many Court watchers consider this a test case for how the Justices might rule on gay marriage when that issue reaches the Court.

In other big First Amendment news this week, the Court decided United States v. Stevens, a case about videos of animal cruelty. [Disclosure: Akin Gump, the sponsor of this blog, represented the defendant, Robert Stevens, but I was not involved in the case.] What's confusing for many people is that this case is not about animal cruelty itself "“ laws in most states prohibit it, which is why, for example, Michael Vick got in big trouble for dog fighting. Instead, this case is about a federal law criminalizing videos depicting animal cruelty. Sounds like a minor difference, but it's an important one "“ once we get into the video realm, we're talking about speech, and that means that the free speech clause of the First Amendment applies.

Now, there's no absolute right to free speech under the Constitution. The Court has held over the years that the government can limit certain types of very harmful speech like obscenity and child pornography. But in its opinion in Stevens, the Court held that, while it is horrendous, speech depicting animal cruelty does not rise to the same level, at least not all of the time. The legal concept here is called "overbreadth," and it means just what it sounds like: the law is too broad, punishing speech like hunting videos as well as speech like crush videos (in which a woman wearing high heels kills an animal by crushing it).

Does that mean that depictions of animal cruelty will be protected without exception? No, because the Supreme Court seemed to say in its opinion that Congress could pass a narrower law to criminalize only the most horrible of horrible, perhaps to include crush videos.

But, you might say, I think all kinds of animal violence are truly terrible. The Court addressed that argument, reminding us that the First Amendment was drafted intending to protect offensive speech, because speech endorsing popular viewpoints does not need protection.

In short, this is a case which expands upon the established rule that the First Amendment protects our freedom to advance unpopular, even repugnant viewpoints. Does it mean that Chief Justice Roberts, who authored the opinion, thinks it's OK to hurt little animals? No, absolutely not "“ in fact, the Roberts family (which includes two young children) has had a number of pets over the years, including snails, ladybugs, and goldfish. What it means is that the Chief has sworn to uphold the Constitution "“ even when the facts are difficult to swallow, as in cases like this.

In other SCOTUS news, the Court decided three other cases this week, including one limiting the fees that can be paid to attorneys, even for a job well done, one holding that a trial court should have deferred to a plan administrator in calculating benefits, and one stating that legal errors do not excuse a violation of the Fair Debt Collection Practices Act. [Disclosure: Howe & Russell, represented the petitioner in the third case, Jerman v. Carlisle.]

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Merits Case Pages and Archives

The justices met on Friday for their February 16 conference; our "petitions to watch" for that conference are available at this link. The calendar for the February sitting, which begins on February 20, is available on the Supreme Court's website.

Major Cases

United States v. Microsoft Corp.Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of February 16, 2018

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the due process clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of putative plaintiffs without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can be reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the U.S. Court of Appeals for the 6th Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Silvester v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California's full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit's concerted resistance to and disregard of the Supreme Court's Second Amendment decisions.